Information Note on the Court’s case-law 214
January 2018
Čeferin v. Slovenia - 40975/08
Judgment 16.1.2018 [Section IV]
Article 10
Article 10-1
Freedom of expression
Decision to hold defence counsel in contempt of court for criticising the prosecutor and expert witnesses: violation
Facts – The applicant acted as defence counsel in a murder trial. He was fined for contempt of court in two separate sets of proceedings for criticising the expert witnesses and the public prosecutor in his oral and written submissions. In the Convention proceedings, the applicant complained of a violation of his right to freedom of expression.
Law – Article 10: The fines imposed on the applicant for contempt of court amounted to an interference with his freedom of expression, which interference was prescribed by law (section 78(1) of the Criminal Procedure Act) and pursued the legitimate aim of maintaining the authority of the judiciary and protecting the reputation and rights of participants in the proceedings.
As to whether the interference had been necessary in a democratic society, the Court found that the domestic courts had not furnished relevant and sufficient reasons to justify the restriction of the applicant’s freedom of expression and so had failed to strike, on the basis of the criteria laid down in the Court’s case-law, the right balance between, on the one hand, the need to protect the authority of the judiciary and the reputation of the participants in the proceedings and, on the other, the need to protect the applicant’s freedom of expression.
In reaching that conclusion, the Court had regard to the following factors.
(a) The applicant had made the impugned remarks in his capacity as an advocate for a defendant charged with three murders. His remarks were thus made in a forum where his client’s rights were naturally to be vigorously defended. Moreover, they were confined to the courtroom, as opposed to the criticism of a judge voiced in, for instance, the media. In both sets of contempt proceedings, the domestic courts had failed to put the applicant’s remarks in the context and form in which they were expressed.
(b) The domestic courts did not appear to have afforded increased protection to the impugned statements directed at the public prosecutor’s actions. Yet the rule that the limits of acceptable criticism could in some circumstances be wider with regard to civil servants than in relation to private individuals applied a fortiori to the criticism of the public prosecutor by the accused, Likewise, given that they were acting in their official capacity and having regard to the potential impact of their opinions on the outcome of the criminal proceedings the expert witnesses should have tolerated criticism of the performance of their duties.
(c) The impugned remarks could not be construed as gratuitous personal attacks or be taken to have had the sole intention of insulting the experts, the public prosecutor or the court. Nor could they a priori be considered to have been baseless. In particular, they had a basis in the facts the applicant had put forward with a view to challenging the credibility of the experts and the non-disclosure of lie-detector test results. Whether those facts were sufficient to justify the impugned statements was a matter which should have been properly considered by the domestic courts.
(d) Most of the impugned remarks were expressed orally, yet there was no indication that the sitting judges had reacted to the criticism. Moreover, it was striking that the applicant had not been afforded any opportunity to explain or defend himself before the fines were imposed on him. In that connection, the Court stressed the duty of the courts and the presiding judge to direct proceedings in such a manner as to ensure the proper conduct of the parties and above all the fairness of the trial – rather than to examine in subsequent proceedings the appropriateness of a party’s statements in the courtroom.
Conclusion: violation (six votes to one).
Article 41: EUR 2,400 in respect of non-pecuniary damage; EUR 800 in respect of pecuniary damage.
(See also Nikula v. Finland, 31611/96, 21 March 2002, Information Note 40; Kyprianou v. Cyprus [GC], 73797/01, 15 December 2005, Information Note 82; and Morice v. France [GC], 29369/10, 23 April 2015, Information Note 184)
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This summary by the Registry does not bind the Court.
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